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Bryson & Pember

Bryson & Pember

Case [2013] FamCA 43 6 February 2013

Statutory Interpretation

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FAMILY COURT OF AUSTRALIA

BRYSON & PEMBER

[2013] FamCA 43

FAMILY LAW – PROPERTY – Property settlement proceedings – Whether the right to apply to the court for an order pursuant to s 79 is of itself property – Whether the right to apply to the court for an order pursuant to s 79 is a chose in action – Where a personal right is not a chose in action and not property.

FAMILY LAW – BANKRUPTCY – Where the husband declared bankrupt by his own petition – Rights of creditors – Whether the right to apply to the court for an order pursuant to s 79 vests in the bankruptcy trustee – Whether a bankrupt party has standing to bring property proceedings pursuant to s 79 – Where a party becomes bankrupt prior to family law proceedings – Where a party is discharged from bankruptcy prior to family law proceedings.

FAMILY LAW – JURISDICTION – Matrimonial Cause.

Bankruptcy Act 1966 (Cth) s5, s58(1)(a), 58(1)(b), and 116(1)(b),
Family Law Act 1975 (Cth) s4, s31, s44(3), s74 and s79

Cummings v Claremont Petroleum NL (1996) 185 CLR 124
Deputy Comissioner of Taxation v Swain (1998) 20 FCR 507
In re Rose; Trustee of the Property of ET Rose v Rose [1904] 2 Ch 348
Krischell Pty Ltd v Nilant & Ors (2006) 32 WAR 540
Loxton v Moir (1914) 18 CLR 360
MG Corrosion Consultants Pty Ltd v Gilmour and Anor (2012) 202 FCR 354
Minister of State for the Army & Dalziel (1944) 68 CLR 261
O’Neill v O’Neill (1998) FLC 92-811
Stanford v Stanford [2012] HCA 52

APPLICANT:

Ms Bryson

RESPONDENT:

Mr Pember

FILE NUMBER:

BRC

8546

2010

DATE DELIVERED:

6 February 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

19 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Boe with Mr O'Brien

SOLICITOR FOR THE APPLICANT:

Ryan Kruger Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Sullivan SC

SOLICITOR FOR THE RESPONDENT:

Hopgood Ganim

Orders

That much of the wife’s Application in a Case filed 6 September, 2012, that is framed by the two points of argument:-
(i)That the husband cannot apply for orders altering the property interests of the parties because the right to make such an application was a right that vested in his trustee in bankruptcy upon his bankruptcy and the right has not re-vested in him; and/or
(ii)That the husband does not have locus standi to bring the application for alteration of the parties interests in property is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bryson & Pember has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8546 of 2010

Ms Bryson

Applicant

And

Mr Pember

Respondent

REASONS FOR JUDGMENT

Mr Pember and Ms Bryson married in 1996 and separated in or around September/October 2009. A decree nisi of dissolution of their marriage…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bryson & Pember

Details

AGLC: Bryson & Pember [2013] FamCA 43
Case: [2013] FamCA 43
Decision Date

CaseChat Overview and Summary

In *Bryson & Pember* [2013] FamCA 43, the Family Court of Australia considered whether a bankrupt husband's right to apply for property settlement orders under section 79 of the *Family Law Act 1975* (Cth) vested in his trustee in bankruptcy. The wife sought to dismiss the husband's application for property settlement and spousal maintenance, arguing that his right to bring such proceedings had passed to his trustee upon his bankruptcy and had not subsequently revested in him.

The court was required to determine two primary legal issues: first, whether the right to apply for property settlement orders under section 79 of the *Family Law Act* is itself considered "property" for the purposes of the *Bankruptcy Act 1966* (Cth); and second, whether such a right, if it is property, vests in a trustee in bankruptcy. The husband had been declared bankrupt in March 2009 and discharged in March 2012, shortly before filing his property settlement application.

Justice Forrest analysed the definition of "property" under the *Bankruptcy Act* and the nature of a "chose in action". He noted that section 58(1)(a) of the *Bankruptcy Act* vests "the property of a bankrupt" in the trustee. The court considered various authorities on the definition of a chose in action, including *Loxton v Moir* and *Krischell Pty Ltd v Nilant & Ors*. The central question was whether the right to initiate family law property proceedings constituted a proprietary right that would pass to a trustee. The court distinguished between a right to litigate and a chose in action, and further, between a chose in action and property.

The court ultimately dismissed the wife's application. It held that the right to apply for property settlement orders under section 79 of the *Family Law Act* is not, in itself, a chose in action or property that vests in a trustee in bankruptcy. Such a right is a personal right to seek a court order, and it is only upon the making of such an order that an interest in property might devolve upon the applicant. Therefore, the husband retained the standing to bring his application for property settlement and spousal maintenance.

Orders